240911 Feuerring case CH – translation of decision of Bundesgericht
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HCU statement regarding settlement with PANArt
HCU statement regarding settlement with PANArt
You may have asked yourself: “Why it is so hard (or impossible) to find an out-of-court settlement with PANArt in the ongoing lawsuit?”
Let’s start with the obvious – a multi-year international lawsuit is not fun to manage. It is also extremely expensive. None of us wants to be here and we would be delighted if we could come to an agreement with PANArt to settle this out of court. So why is it so difficult?
- What is HCU’s goal?
Our mission statement says that we want to preserve the playing, fabrication, availability and the further development of the handpan musical instrument. For us that means to keep the design space for handpan free from handicaps and limitations. Or, if that is not possible, to keep the compromises that handpan builders have to make limited as much as possible to visual aspects of the instrument that don’t handicap functionality. Basically we want to avoid major design restrictions that would lead to worse sounding or playable handpans.
- PANArts public position
Copyright is purely about the visual appearance of an object so on paper it shouldn’t be too difficult to find a solution here. After all, PANArt has publicly stated several times that their goal is that handpans and Hang should be clearly distinguishable. Sabina Schärer has repeated in a recent statement in a Bernese newspaper that for them it’s about being able to distinguish Hang and handpans (quote below).
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«Wir wollen kein Monopol», Aber es gehe darum, dass man das Original und die Kopien voneinander unterscheiden könne.
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“We don’t want a monopoly”, but it’s about being able to distinguish the original from copies.
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- Settlement negotiations before the recent verdict / different goals of PANArt and HCU
There are many ways to establish clear visual differences between Hang and handpans:
Color is a simple one. Stainless steel instruments already differ clearly from the Hang because of their strikingly different color. Every layperson can clearly distinguish an ember or golden instrument from any generation of Hang. Handpans are also often bigger, have much more distinctively shaped tone fields and central notes, come in all kinds of configurations with innie and outie top and bottom notes, several rows of tone fields, off-center central notes and so on. Of course we would prefer to find a solution, where clear visual differences are established that don’t restrict the instrument shape in a major way.
The next set of options would be solutions that would mean certain mandatory changes to the instrument’s shape.
Each of these would put restrictions on the design and make the building process a little less smooth, but there are options imaginable that would break some of PANArts four elements while coming with minimal compromises to functionality and playability. While we would like to keep design restrictions to a minimum, this is an area where we would see room for negotiation.
While PANArt’s public statements say that their goal is simply a visual distinction between Hang and handpans, PANArt’s only proposal until a few days ago (see more below) has been to limit handpans to inpex tone fields.
This is a design restriction that has been explored quite extensively a few years ago by several handpan makers. In the end, it was clearly rejected by the community. Players didn’t want to play these handpans and handpan builders mostly stopped making them.
Reasons included a reduction of the bass activation, a lack of tonal separation between bass note and tone fields and lots of playability restrictions.
What would be a likely outcome of such a restriction?
Lots of illegal imports and “handpan tourism” where people travel to other countries to purchase handpans that are not affected by this restriction seem very likely outcomes. Affected handpan builders would be in a very rough spot, having to build inferior instruments that people don’t want to play.
It’s also important to keep in mind that only parties that sign an agreement with PANArt would be legally obliged to adhere to an Inpex. In all likelihood, for the reasons stated above, hardly anybody else would want to follow suit and the court drama would simply move to other places and continue. It is not clear why PANArt cannot understand this point. If we want to bring these lawsuits to an end, it’s only possible if an agreement is acceptable to a majority of builders and resellers out there. An Inpex would clearly be a lose-lose situation for the signees and for PANArt.
All our inquiries about personal meetings out of court to sit down over a cup of tea and have a conversation have been turned down by PANArt. This would have allowed for a proper discussion and to understand if there is potential to come together to find a solution.
We are 100% convinced that it is possible to collaboratively find a set of visual characteristics to ensure that no one mistakes a handpan for a Hang, without major functional compromise to the instrument.
After the last hearing Sabina Schärer made a private remark saying that a settlement “has to hurt” for our side. As long as this is still the sentiment at PANArt, it will unfortunately be very challenging to come together.
- Communication inconsistencies
There is an inconsistency in PANArt’s statements over the years, which is frustrating for handpan builders who tried to co-exist peacefully.
In an article after their lawsuit with Echo Sound Sculptures in 2019, PANArt mentioned that after some design changes (the shape of the central note), the instruments from HCU member and plaintiff in the court proceedings, Daniel Bernasconi were “significantly different” in design than the Hang.
Nonetheless, around Christmas the following year, he received a cease and desist letter to stop building his instruments within 3 months.
When PANArt offered licenses on their (now revoked patent of their) PANG-material, they welcomed handpan builders to build instruments.
https://web.archive.org/web/20170519040220/http://panart.ch/en/license/licensees
In an email that was sent to some handpan builders, a PANArt employee wrote in 2014 that everyone who does not infringe on their patented “Pang” material is free to produce and sell handpans with PANArt’s best wishes.
Quotes:
“It is also our clear intention to seek the collaboration and dialogue with other handpan builders around the world and exercise a culture of respect and transparency towards the handpan world.”
“So far, quite a number of companies and handpan builders have made use of the opportunity of getting their material analyzed, with the result, that their employed material and or production method does not infringe the PANArt patents. As a matter of fact, they are free to produce and sell their products with our best wishes.”
Furthermore, PANArt uses unfortunate communication strategies in this conflict, like systematically trying to intimidate handpan builders with legal threats or instructing an employee to systematically modify Wikipedia articles about several related topics and changing their own past publications to fit the narrative of the day. This is very unfortunate, and certainly does not help in finding a peaceful solution.
- Why it is necessary to continue this expensive lawsuit
As mentioned in the beginning of this article, we would love to put this whole affair to rest. It takes an incredible amount of time and energy to organize the various aspects of this lawsuit and we all have lives to get back to and handpans to build/play. But we made a commitment to protect the handpan to the best of our ability. During the last court hearing the judge asked Sabina if the Ayasa D Kurd 10 handpan did not already look quite different from a Hang (suggesting that it does). The judge also mentioned casually that a pink handpan probably wouldn’t violate a potential copyright. Finally, in the non-public mediation talks with the Court judge at the last hearing, we were given unmistakeable hints that handpans are here to stay.
We are confident that, if the lawsuit continues, there will be a solution or a set of solutions with no handicap for playability, sound and construction of handpans. On many modern handpans, some of the 4 design elements are already changed. Mutant instruments have the bass note off-center and the layout of tone fields is different from the simple circle.
Instruments with bottom notes are not really lens-shaped any more, especially if some of the notes are outies.
- Where do we stand today – latest settlement offer by PANArt
The parties of the lawsuit have recently received an updated settlement offer asking for
- high damage payments (between 60’000 Eur and 100’000 Eur per party, or a grand total of more than a Million Eur in total across all 15 parties),
- the restrictions to not build any handpans with convex cupolas – neither on the top, nor on the bottom (!) side – and
- the destruction of any leftover handpan with convex cupolas.
We find this proposition unacceptable, last but not least because it gives a foretaste of what other builders/ sellers will most likely be confronted with by PANArt if we let this stand. So for now it looks like we will find ourselves in court for another couple of years. We haven’t given up hope to find an acceptable solution for both sides, but currently it does not look very promising.
- To sum things up
If PA’s goal was simply to make the Hang visually distinguishable, we would be all for it. It should be very much possible to find a solution for that. If there are any builders or resellers who still don’t agree with this sentiment, we’d be happy to convince them otherwise.
We respect PANArt’s wish that they want handpans to look different than Hangs and the vast majority of builders does as well. But we don’t believe that the functionality of the instrument has to suffer to achieve this.
We have the impression that PANArt’s actual intention is to impose restrictions on the design of handpans that simply would turn these into worse instruments. If that is indeed true, we have to see this court battle through to the very end.
Our goal remains the same as it was from the beginning – for handpan builders to be able to build handpans without compromise to function, sound or playability. That is why we do what we do.
Legal Advice for Handpan Builders: Understanding the PANArt Copyright Lawsuit
Legal Advice for Handpan Builders: Understanding the PANArt Copyright Lawsuit
What’s Happening with PANArt’s Copyright Lawsuit?
Hello everyone! At the moment we receive many questions from handpan builders regarding how the court’s verdict in the first phase of the trial affects their work. With this article we want to give you a summary and answer the most relevant legal questions.
- General information
Which countries are affected?
The current legal battle is mainly relevant for Switzerland, Germany, and the Netherlands. There’s no unified EU copyright, so PANArt would need to establish copyright protection separately in other countries. While PANArt might have a shot at success in other EU countries (since European courts often take cues from each other), it’s a big ask for them to file new lawsuits everywhere. It will be time-consuming and expensive. Contrary to what they published on their blog, copyright in the rest of the EU is not subject to this lawsuit.
What’s Protected and What’s Not
Right now, it’s still up in the air how broad or narrow the copyright protection is in Switzerland, Germany, and the Netherlands. We don’t yet know which handpans might infringe on the copyright and which won’t. The lawsuit focuses on four key elements: the lens shape, central tone field, central Gu hole, and circular arrangement of tone fields. During the trial, judges hinted that some designs, like the Ayasla Instruments D Kurd 109 or a pink handpans, might not infringe. Unfortunately these comments didn’t make it into the final ruling, but they were noted during the hearings.
Many modern handpans, like Mutant instruments or those with bottom notes, already differ significantly from the traditional design. According to our lawyers, there is a good chance these differences aremight be enough to avoid copyright issues. If the lawsuit continues, by the end the court will most likely draw a clear line between infringing and non-infringing instruments. We are confident that there will be a solution that will allow you to continue to build handpans without compromise to the instrument’s quality. That is the core goal of our work.
Looking Forward to Legal Clarity
We aim to get definitive guidelines from the Court. Once these guidelines are established, handpan builders around the world will be free to create their instruments as long as they follow the Court’s rules.
- Can you end up in court with PanArt if you continue to build handpans now?
Damage Claims
PANArt has suggested the possibility of claiming damages. While our lawyers think it’s unlikely they’ll go after every handpan builder, here is what you need to know in case to be prepared:
Time Limits
Damage claims have a three-year statute of limitations. PANArt would need to prove why they only recently discovered a specific builder’s activities to extend this period. If you have a public presence, it’s unlikely PANArt’s claims to extend the period beyond 3 years will hold up.
- What would be the theoretical cost in damages?
Damage claims typically amount to around 1-10% of revenue and are (so far) limited to Switzerland, Germany, and the Netherlands
- Cost of Litigation for PA
PANArt would have to litigate each instrument individually to prove copyright infringement, which would be prohibitively expensive. For instance, pursuing damages for a single handpan could cost them in the 10000s in legal fees, while the recoverable damages might be comparatively very low. It’s clearly not financially viable in most cases.
Criminal Prosecution Concerns
Criminal prosecution for copyright infringement usually targets large-scale, organized operations, not individual builders. Our legal team believes it’s highly unlikely that prosecutors in Switzerland, Germany, or the Netherlands would pursue individual handpan builders. Even if PANArt files a complaint, the cost and likelihood of dismissal due to lack of interest make this an improbable route for them.
- How to Protect Yourself
While we wait to see which handpans might infringe on the copyright, there are steps you can take to protect yourself. If there’s no out-of-court settlement, the legal battle could continue for another 2-4 years. Eventually, the court will clarify which handpans violate the copyright, ideally providing guidelines to avoid infringement.
We think PANArt is unlikely to target smaller builders for damages. If they do, it will only affect handpans that fall within the “scope of protection,” which is still undefined. To reduce your risk, you can consider modifying your designs to change one or more of the 4 relevant elements (lens shape, central outie bass note on top, one circle of tone fields and central gu hole on the bottom.
Some options could be outie bottom notes, off-center Ding and Gu, Cyclops/Mutant instruments, or additional outies on the top. While we can’t guarantee these changes will protect you (since the court’s decision is still pending), each modification lowers the chances of falling within the protected scope.
- Our Approach to Settlement Negotiations
We’ve always believed that visual differences between Hang and handpans are absolutely ok as long as they don’t compromise function, sound, or playability. PANArt has publicly stated their goal to make handpans and Hang visually distinct. For this, various easy solutions could be found, like using different colors, which already set many handpans apart from Hang or other visual features that don’t affect function.
However, PANArt’s concrete proposals so far have focused on functional changes, which we believe would significantly limit the handpan’s capabilities.
Our goal remains to either find a settlement ensuring clear visual distinction without functional restrictions or to continue litigation until the court defines the scope of protection. We’re optimistic that many modern handpans may already lie outside this scope and can continue to be produced without modifications.
This article aims to give you the information you need to navigate this complex legal landscape. By understanding the current situation and potential outcomes, you can make informed decisions to protect your craft and livelihood. Happy building!
Brief to court of Berne-German version
Walder Wyss filed our second brief to the court of Bern. It represents countless hours of work and is the product of the legal team (Bird & Bird and Walder Wyss) closely collaborating with numerous members of the handpan community along with prestigious external scientific experts.
Expert Opinion by Prof. Woodhouse
Jim Woodhouse, an emeritus professor of the Department of Engineering in the University of Cambridge, prepared an opinion on technical aspects of certain features of the Hang, which was filed to the court of Bern together with the brief.
https://hcu.global/wp-content/uploads/2022/07/Expert-Opinion-by-Prof.-Woodhouse.pdf
Translation of brief to court of Berne-EN
Walder Wyss filed our second brief to the court of Bern. It represents countless hours of work and is the product of the legal team (Bird & Bird and Walder Wyss) closely collaborating with numerous members of the handpan community along with prestigious external scientific experts.